Opinion
No. 12–P–1303.
2013-07-1
Tarin DELANEY v. Nancy RUSSO & another.
By the Court (KANTROWITZ, MILKEY & MALDONADO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this medical malpractice action, the plaintiff appeals from the allowance of defendant Dr. Nancy Russo's motion for summary judgment. We affirm.
Background. On January 12, 2008, the plaintiff fell on broken glass and sustained lacerations on her right buttock. She was treated by Dr. Russo, an emergency medicine physician at Good Samaritan Medical Center, and released. Because of continuing problems, a CT scan was done, revealing a piece of glass in the plaintiff's buttock. On January 23, 2008, Dr. Ferzoco of New England Baptist Hospital operated on the plaintiff and removed a small piece of glass lodged in the buttock. On July 1, 2008, the plaintiff filed a medical malpractice complaint against Dr. Russo, alleging that she should have done more to probe the wound for remaining glass, or taken an X-ray or other image to confirm that all glass had been removed. In the course of final pretrial proceedings, it became apparent that the plaintiff had not retained an expert to testify at trial and did not intend to do so. The plaintiff maintained that expert evidence was not needed, or, in the alternative, that she could present such evidence without a testifying expert. Dr. Russo contested this in a series of motions in limine and one for summary judgment. In a thorough and thoughtful ruling, the judge ruled in Dr. Russo's favor and dismissed the action.
Discussion. “It is only in exceptional cases that a jury ... may without the aid of expert medical opinion determine whether the conduct of a physician toward a patient is violative of the special duty which the law imposes.” Palandjian v. Foster, 446 Mass. 100, 106 (2006), quoting from Haggerty v. McCarthy, 344 Mass. 136, 139 (1962). We discern no merit in the plaintiff's contention that this is one of those rare cases where lay jurors could have determined that the doctor violated an applicable standard of care without resort to expert opinion evidence. Simply put, this is not a case where there was negligence that was so obvious that it lay within the common knowledge of jurors. See Haggerty v. McCarthy, supra at 139–140.
Especially where, as here, the jury could not have determined the applicable standard of care from either their common knowledge or available expert opinion evidence, the plaintiff's case is not aided by her attempted invocation of the doctrine of res ipsa loquitur. See generally Edwards v. Boland, 41 Mass.App.Ct. 375 (1996) (discussing the use of res ipsa loquitur in medical malpractice cases).
For the reasons that follow, the three alternative means through which the plaintiff proposed to have the necessary expert evidence admitted fail as a matter of law.
Dr. Ferzoco. Dr. Ferzoco was the treating physician who removed the glass, and hence a fact witness. In an eleventh hour effort, the plaintiff listed Dr. Ferzoco as her expert witness at trial. Her assertion that “[Dr. Ferzoco] will testify that [the defendant], according to reasonable medical certainty, did not conform to the medical standard of care for the treatment of [the plaintiff] ...” is a rank misrepresentation. In fact, Dr. Ferzoco not only did not form the opinion alleged by the plaintiff, she made it abundantly clear she had not been retained as the plaintiff's expert.
On this record, the plaintiff cannot show such exceptional circumstances as would justify requiring Dr. Ferzoco to testify as the plaintiff's expert. See Box Pond Assn. v. Energy Facilities Siting Bd., 435 Mass. 408, 417 (2001) (“The general rule is that an expert witness ... who has not been retained by the party seeking his testimony, cannot be required to give an opinion already formed unless ‘necessary for the purposes of justice,’ “ quoting from Ramacorti v. Boston Redev. Authy., 341 Mass. 377, 379 [1960] ).
Dr. Ferzoco filed an emergency motion for a protective order to preclude the plaintiff from calling her as an expert witness, which was allowed on November 23, 2011.
Opinion letters. The plaintiff submitted two opinion letters as part of her offer of proof before the medical malpractice tribunal. Neither of the authors of those letters treated or examined the plaintiff. Nevertheless, citing to G.L. c. 233, § 79G, the plaintiff maintains that the two opinion letters could have been admitted at trial in lieu of live expert testimony. There is no merit to this argument. See Bailey v. Cataldo Ambulance Serv., Inc., 64 Mass.App.Ct. 228, 234 (2005), citing Ortiz v. Stein, 31 Mass.App.Ct. 643, 646 (1991) (an “expert opinion in medical records admitted pursuant to G.L. c. 233, § 79G, must be made by a physician who examined or treated the patient”).
Learned treatise. The plaintiff also sought to rely on two alleged learned treatises, including Tintinalli's Emergency Medicine: A Comprehensive Study Guide. Putting aside the question whether the relevant portions of those documents actually provide any significant support for the plaintiff's case, the plaintiff was unable to show pursuant to G.L. c. 233, § 79C, as amended by St.1965, c. 425, that the editors and/or writers were recognized as experts on the subject and that the book was admissible as a learned treatise. See Ramsland v. Shaw, 341 Mass. 56, 63–65 (1960); Commonwealth v. Johnson, 59 Mass.App.Ct. 164, 170 (2003). The plaintiff is incorrect that a printout of a Barnes & Noble Web page referring to Tintinalli, Emergency Medicine, as the leading textbook in emergency medicine is sufficient for these purposes.
To the extent the plaintiff raises other arguments in her brief, they do not constitute considered legal argument supported by citations to relevant legal authorities, Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
In sum, the judge correctly ruled that the plaintiff's case was doomed by her failure to retain an expert witness, and her inability to get the necessary expert opinion evidence in through other means.
Judgment affirmed.